Madhya Pradesh High Court
Radhika Pandey vs Deepak Sahukar on 23 February, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 23 rd OF FEBRUARY, 2024
CRIMINAL APPEAL No. 7624 of 2022
BETWEEN:-
RADHIKA PANDEY W/O JAI SHANKAR PANDEY, AGED
ABOUT 47 YEARS, OCCUPATION: HOUSEWIFE D-23
TEACHERS COLONY RANI DURGAWATI
VISHWAVIDHYALAYA PARISAR THANA CIVIL LINE
DISTRICT JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI NIKHIL TIWARI - ADVOCATE)
AND
1. DEEPAK SAHUKAR S/O RAMCHANDUDU, AGED
ABOUT 40 YEARS, 13/1 MAHAVEER COLONY
HATHITAL THANA GORAKHPUR DISTRICT
JABALPUR (MADHYA PRADESH)
2. DEVIS SWAMI S/O S.R. SWAMI, AGED ABOUT 40
YEAR S , R/O PLOT NO. 22 JONSON SCHOOL
CAMPUS NARMADA ROAD THANA GORAKHPUR
DISTRICT JABALPUR M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI D.S. RAJPUT - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This Criminal Appeal has been filed by the appellant seeking quashment
of judgment dated 27.7.2022 passed in SC NIA 10956/2015 passed by Special
Judicial Magistrate I Class, District Jabalpur and to convict and sentence the
respondents for the offence under Section 138 Negotiable Instruments Act.
2. It is contended by the counsel that a case Complaint Case under
Section 138 of Negotiable Instruments Act was filed by the present appellant
before the Trial Court. In the complaint it was asseverated by the appellant that
the present complainant as well as respondents were known to each other and
the complainant decided to buy a plot measuring 1000 sq. ft. which was being
constructed constructed under Home Works India Project Samriddhi Phase-2
and towards the said plot an amount of Rs.50,000/- was given by the applicant.
Later on as the said transaction was cancelled the respondents gave a cheque of
Rs.50,000/- to the appellant. The same was dishonored which ultimately
ensued in filing of complaint under Section 138 of the Negotiable Instruments
Act.
3. The Court, upon conclusion of Trial has proceeded to dismiss the
complaint on the ground that since there was transaction between the
complainant and and the firm and as the firm was not impleaded as one of the
accused, the complaint itself was not maintainable and has proceeded to
dismiss the complaint and also acquitted the respondents therein.
4 . It is contended by the counsel that the Trial Court has failed to
appreciate the admission of the respondents. The statement recorded under
Section 313 Cr.P.C in response to question No. 3, there was a clear admission
by the respondents that the cheque was given by them and later on they paid a
sum of Rs.25,000/- yet the cheque was presented by the complainant for
encashment. This admission of the respondent was ample enough to
demonstrate that an offence within the purview of Section 138 of Negotiable
Instrument Act was committed. It is further contended by the counsel that if
the Trial Court proceeded to reject the complaint on the technical ground that
the firm was not impleaded, the present appellant here has moved an
interlocutory application vide I.A No. 3782/2023 and has made a prayer that
present appellant be permitted to amend the complaint in order to implead the
firm as respondent. Counsel for the appellant further submits that as per Section
24 of the Partnership Act, a transaction at the behest of the partner is treated to
be a transaction by the firm; therefore, there was no necessity to implead the
firm. It is thus contended by the counsel that the judgment of the Trial Court
deserves to be set aside. In support of contention reliance is placed by the
appellant in the case of Mohd. Yousuf v. Smt. Afaq Jahan and anaother
(2006 CRI.LJ 788) and also Bhimappa Basappa Bhu Sannavar v. Laxman
Shivarayappa Samagouda (AIR 1970 SC 1153).
5. Counsel for the respondent submits that the present appeal deserves
to be dismissed. The Court having found that the firm was not impleaded as
party nor any notice was issued to the firm, thus, in view of Section 141
Negotiable Instrument Act the complainant was not maintainable. Counsel has
placed reliance on the decision of Aneeta Hada v. Godfather Travels and
Tour Pvt. Limited [(2012) 5 SCC 661].
6. Heard the submissions and perused the record.
7. Having heard the submissions, a perusal of the judgment of the Trial
Court reflects that the Trial Court has proceeded to dismiss the complaint on
the ground that despite there being a transaction with the firm the firm has not
been impleaded as the respondent. Thus, while taking into consideration the
provisions of Negotiable Instruments Act, the Court has declined interference
while passing the impugned judgment. A perusal of the complaint filed by the
complainant reflects that the complainant has referred in paragraph 2 of the
complaint that the complainant had entered into transaction as regards purchase
of plot measuring 1000 sq. ft. and the respondents were referred as "Home
Works India Project Samriddhi Phase-2". Even in the cross-examination as
well the complainant in paragraph 22 has clearly referred that she has invested
the amount in the firm of the respondents. Thus, from the perusal of record it
is evident that there was a transaction between the complainant and the firm.
Therefore, by virtue of Section 141 of the Negotiable Instruments Act, the
impleadment of Firm was sine qua non before proceeding with complaint under
Section 138 of the Negotiable Instruments Act.
8. Apex Court in Himanshu v. B. Shivamurthy and another [(2019) 3
SCC 797] has held as under:
"13. In the absence of the company being arraigned as
an accused, a complaint against the appellant was
therefore not maintainable. The appellant had signed
the cheque as a Director of the company and for and
on its behalf. Moreover, in the absence of a notice of
demand being served on the company and without
compliance with the proviso to Section 138, the High
Court was in error in holding that the company could
now be arraigned as an accused."
9. The Trial Court having considered the aforesaid aspect has
proceeded to pass the impugned judgment which in the considered view of this
Court does not require any interference inasmuch as by the applicability of
Section 141 of Negotiable Instruments Act not only the complaint but also the
Interlocutory Application No. 3782/2023 cannot be entertained at this stage as
admittedly no notice to the firm was issued by the complaint and the statutory
limitation to serve the notice in terms of provisions of Section 138 Negotiable
Instruments Act is also not available with the appellant at this stage.
1 0 . The contention of the appellant as regards Section 24 of the
Partnership Act is also unsustainable in view of specific provisions contained in
Section 141 of the Negotiable Instruments Act.
11. Resultantly, the appeal stands dismissed.
MANINDER S. BHATTI)
JUDGE
vivek
